Judge Robert P. Dahlquist, Case 37-2023-00025649-CU-NP-NC 2023-12-08 Tentative Ruling

Judge: Robert P. Dahlquist, Case: 37-2023-00025649-CU-NP-NC, Date: 2023-12-08 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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SOUTH BUILDING TENTATIVE RULINGS - December 07, 2023

12/08/2023 02:30:00 PM N-29 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Robert P Dahlquist

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Civil - Unlimited Non-PI/PD/WD tort - Other SLAPP / SLAPPback Motion Hearing 37-2023-00025649-CU-NP-NC RODRIGUEZ VS. CABILING ENTERPRISES, INC [IMAGED] CAUSAL DOCUMENT/DATE FILED: Motion - Other, 08/22/2023

Defendants Aimee Cabiling, La Jolla Wealth Management, LLC and Reynaldo Garcia Cabiling's special motion to strike (CCP § 425.16) (ROA # 18) is denied.

On June 22, 2023, plaintiff Greta Neely Rodriguez filed a first amended complaint asserting claims for negligence per se, labor trafficking, dependent adult financial abuse, Business and Professions Code § 17200, libel and intentional infliction of emotional distress. ROA # 8.

Defendants move to strike the first (negligence per se) and fifth (libel) causes of action based on CCP § 425.16.

Defendants' request for judicial notice filed on August 22, 2023 (ROA # 20) is granted.

A two-step analysis is required when addressing this type of special motion to strike. Equilon Enterprises v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, 67.

In the first step, the defendant must show that the conduct underlying the plaintiff's cause of action, or portions of the cause of action that are asserted as grounds for relief, arises from the defendants' constitutional rights of free speech or petition. Civ. Code § 425.16(b)(1); Baral v. Schnitt (2016) 1 Cal. 5th 376, 395; Bonni v. St. Joseph Health System (2021) 11 Cal. 5th 995, 1009–1012 [where a single cause of action alleges multiple factual bases, following Baral, a court should analyze each claim for relief-each act or set of acts supplying a basis for relief-to determine whether the acts are protected and, if so, whether the claim they give rise to has the requisite degree of merit to survive the motion.]. Under Baral, '[a]llegations of protected activity that merely provide context, without supporting a claim for recovery, cannot be stricken under the anti-SLAPP statute.' Baral, at p. 394.

Thus, at the first step of the anti-SLAPP analysis, a court determines whether a complaint's allegations of protected conduct are the basis for a claim for relief or, instead, are incidental or collateral to, or merely provide context for, a claim for relief based on unprotected conduct.

The principal thrust or gravamen approach to multifaceted causes of action (Fox Searchlight Pictures, Inc. v. Paladino (2001) 89 Cal.App.4th 294) is no longer used. This approach was rejected by the California Supreme Court in Baral v. Schnitt (2016) 1 Cal.5th 376 and Bonni v. St. Joseph Health System (2021) 11 Cal.5th 995 in favor of a claim-by-claim approach. When a cause of action includes more than one claim, that is, a set of facts each allegedly giving rise to relief, the court is required to consider whether each claim within a cause of action arises from protected activity protected.

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3018839 CASE NUMBER: CASE TITLE: RODRIGUEZ VS. CABILING ENTERPRISES, INC [IMAGED] 37-2023-00025649-CU-NP-NC Acts that are protected under CCP § 425.16 (e) include: '(1) any written or oral statement or writing made before a legislative, executive, or judicial proceeding, or any other official proceeding authorized by law, (2) any written or oral statement or writing made in connection with an issue under consideration or review by a legislative, executive, or judicial body, or any other official proceeding authorized by law, (3) any written or oral statement or writing made in a place open to the public or a public forum in connection with an issue of public interest, or (4) any other conduct in furtherance of the exercise of the constitutional right of petition or the constitutional right of free speech in connection with a public issue or an issue of public interest.' § 425.16 (e)(1)-(4).

In this case, the court finds that the activity that gives rise to the asserted liability relates to: (a) whether the eviction notice complied with Title 22 of the Code of Regulations section 85068.5, subdivision (c) (first cause of action for negligence per se); and (b) whether the eviction notice, and statements contained therein, constitute libel (fifth cause of action for libel).

The court finds that the allegations contained in the first (negligence per se) and fifth (libel) causes of action are not incidental or collateral to, or merely provide context for, the claims for relief based on unprotected conduct. Rather, these allegations give rise to the asserted liability as to the claims.

For example, plaintiff's basis for relief for the negligence per se claim is that the '[d]efendants' June 23, 2022, eviction letter to Ms. Neely violated [Title 22 of the Code of Regulations section 85068.5, subdivision (c)], in that it contained no such facts.' FAC (ROA # 8), ¶ 24. Plaintiff's basis for relief for the libel claim is that '[d]efendants' June 23, 2022, eviction letter constitutes a statement about Ms.

Neely, published, without reasonable care, to at least one person other than her.' Id. at ¶ 48.

According to Baral, once the court determines that the allegations are not collateral or provided to give context, the court must analyze whether they are entitled to the protection of CCP § 425.16.

The court finds that allegations relating to the eviction notice are protected activity under CCP § 425.16(e)(2). See Feldman v. 1100 Park Lane Assocs. (2008)160 Cal. App. 4th 1467, 1480 [eviction notices are entitled to the benefits of section 425.16.]; see also Lunada Biomedical v. Nunez (2014) 230 Cal. App. 4th 459, 472 ['[S]ervice of a three-day notice to quit ... is [a] protected activity within the meaning of section 425.16 [(e)(2)] because service of the notice is legally required to file an unlawful detainer action.'].

The court now turns to the second step of the analysis. At this step, the burden shifts to the plaintiff to demonstrate the probability of success on the merits.

Defendants assert that plaintiff cannot meet her burden because the litigation privilege attaches to the eviction notice.

'The usual formulation is that the privilege applies to any communication (1) made in judicial or quasi-judicial proceedings; (2) by litigants or other participants authorized by law; (3) to achieve the objects of the litigation; and (4) that have some connection or logical relation to the action. [Citations.]' Silberg v. Anderson (1990) 50 Cal.3d 205, 212. The privilege 'applies to any publication required or permitted by law in the course of a judicial proceeding to achieve the objects of the litigation, even though the publication is made outside the courtroom and no function of the court or its officers is involved.' Id. As a result, 'communications with some relation to judicial proceedings are absolutely immune from tort liability by the privilege.' Scalzo v. Baker (2010) 185 Cal. App. 4th 91, 100.

An exception to the privilege applies where the defendants have no intention in proceeding to litigation.

Rental Hous. Assn. of N. Alameda Cnty. v. City of Oakland (2009) 171 Cal. App. 4th 741, 767 [Service of an eviction notice with no intent to proceed to litigation does not relate to litigation and is not within the conduct protected by the litigation privilege].

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3018839 CASE NUMBER: CASE TITLE: RODRIGUEZ VS. CABILING ENTERPRISES, INC [IMAGED] 37-2023-00025649-CU-NP-NC In this case, plaintiff has presented admissible evidence from which a trier of fact could conclude that defendants had no intention of filing an unlawful detainer action. See Rodriguez Decl. (ROA # 55), ¶ 3 ['Ms. Cabiling routinely issued eviction letter to residents, but I am not aware of any unlawful detainer actions she filed against anyone (including me).']. On other hand, defendants contend that the eviction notice was prepared and served in anticipation of litigation (i.e., the filing of an unlawful detainer action).

See Cabiling Decl. (ROA # 18), ¶ 21.

At this stage of the case, the court may not weigh the evidence. Instead, the court must deny the motion once plaintiff establishes minimal merit to her claim. See Wilson v. Cable News Network, Inc. (2019) 7 Cal. 5th 871, 891 ['The plaintiff need not prove her case to the court (citation omitted); the bar sits lower, at a demonstration of 'minimal merit' (citation). At this stage, '[t]he court does not weigh evidence or resolve conflicting factual claims. Its inquiry is limited to whether the plaintiff has stated a legally sufficient claim and made a prima facie factual showing sufficient to sustain a favorable judgment. It accepts the plaintiff's evidence as true, and evaluates the defendant's showing only to determine if it defeats the plaintiff's claim as a matter of law.''].

The court finds that the plaintiff has met her burden of establishing minimal merit to the first and fifth causes of action. Plaintiff has presented evidence from which a trier of fact could conclude: (1) that the defendants did not intend to proceed with an unlawful detainer action after serving the eviction notice; (2) the eviction notice did not contain the information required by applicable regulations; and (3) the information in the eviction notice was incorrect.

Therefore, the court denied defendants' special motion to strike.

The court is not persuaded that the defendants' motion was frivolous. The court denies plaintiff's request for an award of attorney fees and costs.

This minute order constitutes the court's order. No party is required to submit a proposed order after hearing.

This is the tentative ruling for an appearance hearing (in person or remote) at 2:30 p.m. on Friday, December 8, 2023. If no party appears at the hearing, this tentative ruling will become the order of the court as of December 8, 2023. If the parties are satisfied with the court's tentative ruling or do not otherwise wish to argue the motion, they are encouraged to give notice to the court and each other of their intention not to appear, though this notice is not required.

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